LegCo Paper No. CB(2) 1107/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/53/95
Bills Committee on the
Independent Police Complaints Council Bill
Minutes of the First Meeting
held on Monday, 16 December 1996 at
in Conference Room A of the Legislative Council Building
Members Present :
Hon Zachary WONG Wai-yin (Chairman)
Hon Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon Eric LI Ka-cheung, OBE, JP
Hon James TO Kun-sun
Hon Christine LOH Kung-wai
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon LEE Kai-ming
Hon CHEUNG Hon-chung
Hon Bruce LIU Sing-lee
Hon Margart NG
Hon TSANG Kin-shing
Public Officers Attending :
- Mr Philip CHAN
- Principal Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
- Mr K H CHING
- Senior Assistant Commission of Police
Director of Management Service
- Mr Thomas CHAN
- Chief Superintendent of Police (Acting)
Complaints and Internal Investigations Branch
- Mr WAN Suet-ming
Independent Police Complaints Council
- Mr K F CHENG
- Senior Assistant Law Draftsman (Acting)
Clerk in Attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in Attendance :
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I. Election of Chairman
1. Dr LEONG Che-hung declared interest as a Vice-Chairman of the Independent Police Complaints Council (IPCC).
2. Mr Zachary WONG Wai-yin was elected Chairman of the Bills Committee.
II. Meeting with the Administration
(The Bill circulated vide LegCo Paper No. CB(3) 1023/95-96;
The Legislative Council Brief issued by the Security Branch in July 1996 [Ref: SBCR1/2801/77(96)];
The Legal Service Division Report in LegCo Paper No. LS 211/95-96; and
Extracts of minutes of meeting of the Security Panel on 8 July 1996 in Appendix III to LegCo Paper No. CB(2) 505/96-97)
3. The following two reports were tabled by the Administration at the meeting and circulated to absent members after the meeting under LegCo Paper No. CB(2) 757/96-97:
- Report on Comparative Study of Complaints Against Police Systems (June 1996); and
- Executive Summary of Report on Review of CAPOs Investigation Procedures, IPCCs Monitoring Mechanisms and Interface with CAPO (July 1996).
4. Principal Assistant Secretary for Security (PAS(S)) advised that at present the duty to investigate complaints against the Police rested with the Complaints Against Police Office (CAPO), while the Independent Police Complaints Council (IPCC) assumed the functions of monitoring and reviewing the investigations conducted by CAPO. The Independent Police Complaints Council Bill (the Bill), which sought to turn IPCC into a statutory body, aimed at enhancing the monitoring role of IPCC. The thrusts of the Bill were as follows:
- The Bill empowered IPCC to refer a complaint case back to CAPO for re-investigation, after IPCC had examined the investigation report submitted by CAPO, where IPCC considered that there were doubtful aspects requiring clarification.
- Members of IPCC were empowered to sit-in CAPOs investigation proceedings through scheduled or surprise observations.
- Members of IPCC were entitled to the same protection and privileges as those given to magistrates.
- IPCC would submit reports on the exercise of its functions to the Governor on an annual basis, which would be laid before the Legislative Council for scrutiny.
5. PAS(S) added that, apart from the introduction of the Bill, the Administration had implemented a number of improvement measures, following the adoption of the recommendations arising from the two reports mentioned in paragraph 2 above. These measures, such as the setting of performance pledges for CAPO regarding the time limits for investigation, helped enhance the credibility and transparency of the complaints investigation system.
6. In reply to the Chairmans question, PAS(S) said that not all recommendations of the two study team reports had been reflected in the Bill, as some of them were administrative in nature. Some important measures, however, had been written into the Bill, such as the power of IPCC to refer cases to CAPO for investigation or re-investigation; to monitor, review or report on any action taken and to make recommendations in respect of the handling of any serious cases to the Governor etc.
Credibility of the complaints investigation and monitoring system
7. Members enquired of the reasons for the Administrations objection to proposals to empower IPCC to conduct independent investigations, or to engage non-police officers to undertake investigations, as some members of the Legislative Council had been advocating. PAS(S) replied that appropriate checks and balances already existed under the present system. IPCC could raise queries about the findings of CAPO s investigations and require re-investigation of cases. In exceptional cases involving serious matters where a concensus between IPCC and CAPO could not be achieved, IPCC could bring the case to the attention of the Governor. Taking into consideration IPCCs recommendations, the Governor could then decide on the appropriate course of action, such as appointing an independent inquiry to look into the matter.
8. Mr CHEUNG Man-kwong asserted that cases which in the end needed to be referred to the Governor should be very few. In his opinion, what was in need was an effective and independent mechanism which could cater for situations where IPCC was not satisfied with CAPOs investigation findings and yet it was necessary to bring the case to the attention of the Governor. Mr CHEUNG said that under such circumstances IPCC should have the power of an effective veto over CAPOs decision and to enlist the services of civilian officers to lead an independent investigation. He said that this would improve the credibility of, and public confidence in, the complaints handling system. Mr CHEUNG pointed out that according to the Report on Comparative Study of Complaints Against Police Systems, there were a number of jurisdiction, such as New York and Queensland, where investigation of complaints were carried out by non-police investigators.
9. Senior Assistant Commissioner of Police (SACP) remarked that CAPO had always acceded to requests from IPCC to take follow-up action on queries raised by the latter. Cases of IPCC finally disagreeing with CAPOs decisions were few. IPCC members could take part in the investigations by attending interviews between CAPO officers and the complainants, the complainees and other witnesses. After an investigation was concluded by CAPO, the investigation report would be vetted and reviewed by IPCC, which could then propose further action where necessary. SACP said that these measures taken together would bring about an effective monitoring mechanism. On the issue of independent investigation by non-police bodies, PAS(S) and SACP said that the matter had been thoroughly discussed in the past. The Administration had held that the present system of investigation being conducted by experienced police offices and under the monitoring of a non-police body, was appropriate. Complaints against the Police very often involved criminal matters which could give rise to prosecutions or internal disciplinary actions. It therefore required that investigators should possess professional expertise and thorough knowledge of how the Police actually operated. In countries where investigations were conducted by civilians, it was not uncommon that the investigators were retired police officers or serving police officers seconded to the investigating body. PAS(S) supplemented that out of the ten jurisdictions covered in the study, five were having a system similar to that of Hong Kong. Apart from these, in Japan and Singapore, investigations were conducted internally by the police with no monitoring mechanism.
10. Mrs Selina CHOW said that while she had reservations about non-police investigations, she agreed that there was inadequate transparency in the way different types of complaints were dealt with and reports made known to the public. In view of the limited resources of IPCC and its Secretariat, she wondered if IPCC would be forced to rubber-stamp CAPOs findings.
11. PAS(S) responded that the Administration had been aware of the need to improve the accountability of the complaints system. Towards this end , various measures had been implemented such as the installation of closed circuit television, video and tape-recording facilities in CAPO to ensure transparency during interviews or handling of phone-in complaints. A more pro-active role in publicizing the work of IPCC had also been undertaken. In addition, the proposed IPCC Observers Scheme and opening of some of IPCCs meetings to the public were further steps to enhance credibility. In order to cope with the workload more efficiently and effectively, measures were underway to increase the establishment of IPCC Secretariat, and to appoint an additional Vice-Chairman and three new members to IPCC.
12. Dr LEONG Che-hung remarked that, speaking from his experience as a Vice-Chairman of IPCC, the work of both CAPO and IPCC had improved over the past few years. Newly introduced measures such as scheduled and surprise visits to CAPO by IPCC members and the setting up of special teams within IPCC to review reports were targetted at facilitating IPCCs monitoring role. He said that although there was a manpower constraint of IPCC and its Secretariat, the question of being a rubber-stamp body did not exist. As far as the Bill was concerned, Dr LEONG said that the Administration had consulted IPCC on its content. IPCC in principle agreed that the Bill represented an improvement of the existing system. Yet some Council members felt that IPCC should be given independent investigation power. Dr LEONGs views were echoed by Mr Eric LI Ka-cheung, who was also a Vice-Chairman of IPCC.
13. Dr LEONG Che-hung asked in cases where the IPCC was not satisfied with the evidence adduced in the investigation report, whether IPCC could engage independent professionals to give expert advice on areas relevant to the investigation. PAS(S) and Senior Assistant Law Draftsman pointed out that under clause 2 of the Bill, "witness" was defined as "a person who has provided or might be able to provide information or other assistance in connection with the investigation of a complaint." They said that the meaning was wide enough to cover such persons as mentioned by Dr LEONG. Dr LEONG asserted that clause 10(1) of the bill was cast in terms which seemed to restrict IPCC or its members to interview only witnesses "in connection with the complaint". He said that there had been an actual case where IPCC did not agree with the Force Forensic Pathologists autopsy report, and despite its wish to seek the opinion from a medical expert from UK, it was not allowed to do so under existing authority. Dr LEONG said that one of the major differences between members and the Administration was that members considered it necessary that IPCC should have the power to carry out independent investigations, and to interview any witnesses, where appropriate, in advance of CAPOs interviewing them. He also said that he did not agree with the Polices insistence that for all matters involving investigations of the Police, the investigations had to be done by the Police itself.
14. Mrs Selina CHOW asked the Administration to consider carefully Dr LEONGs point about the authority to seek an independent partys expert opinion and to clarify if IPCC was empowered under the Bill to do so. Referring to IPCCs views on the Bill, she suggested that the Chairman of IPCC should be invited to participate in discussion with the Bills Committee at the next meeting.
(Post-meeting note: A letter has been sent to Mr Denis CHANG Khen-lee, Chairman of IPCC, to invite him or his representatives to attend the next meeting on 9 January 1997. Mr CHANG subsequently replied that he could not attend the meeting owing to a previous court engagement.)
15. Mr CHEUNG Man-kwong enquied if IPCC would be given the power to summon witnesses such as police officers, forensic pathologists and coroners etc. He sought clarifications as to whether some police officers had refused to be the witnesses. He said that the authority of IPCC to summon witnesses would amount to having an independent investigation power. SACP responded that members of the public could refuse to be interviewed under the present complaints system. If it was a matter of human rights and police officers should not be treated differently. Existing policy was such that witnesses should be invited, rather than compelled, to attend interviews. In fact, in nearly all the cases police officers attended the interview conducted by IPCC when requested to do so. In such cases the persons would become witnesses and IPCC would have the authority under the Bill to interview those witnesses for the purpose of, for example, verifying the authenticity of the statements given by them and recorded in the investigation reports. PAS(S) added that the present policy was for CAPO to conduct investigations and IPCC to perform the monitoring and reviewing functions. There would be a confusion of roles if IPCC were to take up the investigation responsibility.
16. In reply to the Chairmans question, Secretary, IPCC said that the initiative and decision to interview witnesses rested with IPCC. There had been a few cases where the complainants had requested to meet members of IPCC. In all these cases, the requests had been acceded to.
17. Mr James TO Kun-sun asserted that there was a lack of credibility in the present system. The public were reluctant to lodge complaints to CAPO because they had no confidence that the investigation system could crack down on the black sheep within the Police. In his opinion, the Bill had not brought much improvements. He pointed out that although a large proportion of the jurisdictions covered in the comparative study had adopted a system of internal police investigations, their situations differed from that of Hong Kong in that the various state police authorities in those countries were not responsible to each other and therefore investigations conducted by one district authority on another carried a high degree of autonomy and credibility. Mr TO said that the undesirable system in Hong Kong would force complainants to litigate through civil proceedings. He further stated that since the motion debate on the roles of CAPO and IPCC first started in 1992/93, there had been many arguments put forward by IPCC and concerned parties, such as justifications to make IPCC an independent body with power to conduct non-police investigations, the proposed appointment of non-police personnel to CAPO and a non-police officer as head of CAPO etc. Mr TO appealed to the Administration and IPCC to supply all the relevant documents for the Bills Committees reference. PAS(S) replied that it was a matter for IPCC to decide whether or not the documents should be released.
(Post-meeting note: The Chairman of IPCC has replied that it is not appropriate to release internal documents of IPCC but alternatively agreed to present an information paper in due course setting out a summary of previous deliberations on IPCCs proposals to the Bills Committee.)
18. Referring to the matter of public confidence, PAS(S) maintained that while the existing system was not a perfect one, there was no reason to believe that it was on the brink of collapse. There had been a considerable number of complaints reported to CAPO. There were 3 367 cases in 1993, 3 084 in 1994, 3 448 in 1995 and 3 315 in 1996. On the other hand, efforts had been made to improve fairness and transparency. SACP advised that the Police had conducted an attitude survey a year ago to gauge public perception of the complaints against police system. According to the opinion returned, it was not widely held by the public that there had been significant deficiencies with the present system. He added that the number of complaints lodged directly with the Police with details of the complainants constituted 45.7% (to police station) of the total number for 1995(to CAPO, to police station, and by letters constituted 88.8%). About 500 cases, or 14.9% of the total, warranted investigation. About 66.8% of the cases could not be investigated or had been withdrawn by the complainants. 18.3% of the total cases were minor complaints which had been dealt with by way of informal resolution. SACP said that even cases which could not be investigated or had been withdrawn were referred to IPCC for endorsement. He remarked that the major reason for these types of cases might be due to the fact that the complainants did not find it worthwhile, after making the complaints, to pursue further on trivial matters. In response, Mr CHEUNG Man-kwong cautioned that people who wished to express an opinion would likely be those who had the actual experience of making a complaint. As it was unlikely that the surrey had covered those people, to conclude that most people did not find the system problematic would be misleading. He also said that the large number of cases withdrawn or found unsubstantiated might be indicative of the expectation on the part of the complainants that their action would not bring about any positive result.
19. Mr James TO Kun-sun pointed out that under the existing system, IPCC was supposed to be the monitoring organ, CAPO, nevertheless, was responsible for the ultimate investigation result. He considered it critically important that IPCC should have the authority to make the final decision. Mr TO said that some members of IPCC had expressed openly that they were not satisfied with the present mode of operation. He queried why there should be a consensus between IPCC and CAPO. SACP said that IPCC and CAPO rarely had discrepancy in connection with the way complaints were handled. Differences between the two parties rather referred to situations where there was a difference in opinion between the legal advisers of IPCC and CAPO respectively regarding the course of action to be taken, such as choosing between internal disciplinary action or prosecution against the offending police officer. The Police had already raised this point with the Attorney General and requested that uniform legal opinion should be given whenever possible. PAS(S) clarified that it had never been the intention of the Administration that IPCC and CAPO should be forced to come to terms with each other. In the event that the two parties held different views, IPCC could always raise queries and demanded action to be taken by CAPO and report to the Governor where necessary. The functions and powers of IPCC had been set out in detail in clauses 7 and 8 of the Bill.
20. Miss Christine LOH Kung-wai said that while the Bill had proposed a step forward to improve the complaints system, the general view of members was that it had yet to achieve the ideal objective of providing a system with high credibility. She said that there were two areas which warranted immediate attention. Firstly, whether IPCC should be given more legal power to facilitate its monitoring role and secondly, to assess the adequacy of the manpower establishment of IPCCs Secretariat. Miss LOH further suggested that the Administration should make an undertaking to review and assess the implementation of this Bill and reveal at some later stage the steps it would take to further improve the monitoring of police powers. PAS(S) responded that as with other systems, the Administration was committed to constantly reviewing the complaints against the Police system in the light of evolving needs. The Administration would certainly take heed of the views of the concerned parties and explore those areas further.
The work of IPCC Secretariat
21. In reply to Mrs Selina CHOWs question, Secretary, IPCC advised that the Secretariat of IPCC had a current strength of 25 staff. Four vetting teams had been set up within the Secretariat which were responsible for screening and reviewing investigation reports prepared by CAPO. Secretary, IPCC and members of the vetting teams usually met on a weekly basis to discuss specific issues arising from the scrutiny of the reports. Cases, which in the opinion of the Secretariat required clarification or re-investigation, would be referred back to CAPO for follow-up action. All the investigation reports and the related documents, together with the recommendations of the vetting teams, would be circulated to IPCC members for reference. The latter would look into the cases again and they might raise further queries where necessary. All the staff of the Secretariat were civil servants working independently of the Police.
22. Concerning the number of queries raised by IPCC, Secretary, IPCC advised that, up to the end of September 1996, out of a total of 338 cases with queries from IPCC, 493 points had been raised. The corresponding figures for the whole of 1995 were 442 and 616 respectively. Out of the 493 points raised by IPCC, 135 recommendations were accepted by CAPO. For 1996, as at the end of September, there had been 33 cases where the results of investigation were changed from "unsubstantiated" to "substantiated" or "not fully substantiated". IPCC had endorsed a total of 3 195 reports from CAPO in 1995, involving 4 633 allegations. The figures for 1996 as at September were 2 631 and 3 766 respectively. Depending on the nature of individual cases, not all complaints warranted full investigation. Each year, about 600 to 700 cases received by CAPO had been dealt with by way of informal resolution. At members request, Secretary, IPCC undertook to provide statistics relevant to the work of IPCC for the past few years after the meeting.
(Post meeting note: The figures supplied by Secretary, IPCC after the meeting have been circulated to members under LegCo Paper NO. CB(2) 786/96-97).
23. Secretary, IPCC also informed members that funds had been approved for the next financial year for IPCC to launch publicity programmes to improve public awareness of its role and work.
Proposed visits to CAPO and IPCC
24. PAS(S) invited members to pay a visit to CAPO and IPCC so that they could have a better understanding of how the complaints system operated. Mr James TO Kun-sun opined that a scene visit would not serve a meaningful purpose, unless members of the Bills Committee had the opportunity, for example, to study the details of a particular case and to follow through the process of investigation to see how investigators actually conducted the investigation. PAS(S) undertook to consider Mr TOs suggestion.
IPCC Observers Scheme
25. Dr LEONG Che-hung informed members that IPCC had introduced an Observers Scheme to heighten the transparency of the complaints monitoring mechanism. He said that it might be necessary to co-opt members to the Scheme.
III. Way Forward
26. Members agreed that a press release should be issued to invite submissions on the Bill from concerned groups and/or invite them to meet the Bills Committee at the next meeting.
(Post-meeting note: A press release has been issued on 17 December 1996).
IV. Dates of Next Meetings
27. The next two meetings of the Bills Committee were scheduled as follows:
- 9 January 1997 (Thursday) at 10:45 am
- 15 January 1997 (Wednesday) at 8:30 am
VI. Close of Meeting
28. The meeting closed at 10:30 am.
22 January 1997
Last Updated on 16 December 1998